CHARLESTON, W.Va. — West Virginia’s attorney general will represent the state in its lawsuit over the price of asphalt, a lawyer for the state Department of Transportation said today while being grilled by legislators.
Under intense questioning about why the Transportation department initially filed its lawsuit last fall through the private Bailey & Glasser firm, attorney Mike Folio said the agency now has an official agreement with Attorney General Patrick Morrisey’s office.
But, citing attorney-client privilege, Folio said that’s almost all he can say.
That wasn’t the answer the legislators on the Joint Legislative Oversight Commission on Department of Transportation Accountability wanted to hear.
It’s an issue because the Legislature passed a law last year saying state agencies have to go through the Attorney General’s office for representation, even if outside counsel is eventually obtained for its expertise.
In October, the private firm Bailey & Glasser filed lawsuits on behalf of Charleston, Parkersburg, Beckley and Bluefield, saying the price of paving has risen artificially in West Virginia because of predatory practices by paving contractors. A couple of days later, the state Department of Transportation jumped on board the lawsuit.
In early December, lawyers for the paving companies being sued filed a motion to dismiss, saying the Attorney General’s office has to sign off on lawsuits filed by the state — but hadn’t.
Throughout the fall, Attorney General Patrick Morrisey said his office could make no public comment about the asphalt case as an investigation took shape. Last month, a spokesman for the office stated, “Our office and the Department of Transportation are engaged in cooperative discussions to handle this matter appropriately. There is no further comment at this time.”
Tuesday’s committee meeting was the second time legislators have asked about the matter, and they were losing patience.
At the end of December, feeling like they hadn’t gotten answers at their last meeting, legislators sent a series of questions via letter to the Transportation department.
They asked: Does the Attorney General’s office represent the Department of Transportation and Division of Highways in the West Virginia Paving lawsuit? When was the law firm Bailey & Glasser retained by the Department of Transportation and Division of Highways to represent them? Please identify the individual who formally approved the retention of Bailey & Glasser. Was a written agreement entered into with Bailey & Glasser? If so, please provide a copy.
Also: Please specify the process used by the Department of Transportation to select Bailey & Glasser. Does the department maintain it has the ability to retain private counsel without Attorney General approval? Did the department obtain approval from the Attorney General’s office prior to retaining Bailey & Glasser?
Folio provided written response, saying: “As I had informed the Commission at its Dec. 6, 2016, meeting, the West Virginia Department of Transportation, Division of Highways, is working with the office of the West Virginia Attorney General in connection with DOH’s ongoing antitrust investigation. It is anticipated that the Attorney General’s Office will be in a position to provide more substantive information about your request in the near future.”
Committee members did not feel like that response answered the questions.
Called before the committee today, Folio began by saying, “I would suggest you contact the Attorney General.”
Delegate Marty Gearheart, the Republican chairman of the committee, responded: “I assume that’s the entirety of your presentation.”
Senate President Mitch Carmichael, a Republican member of the committee, then said, “I’m concerned about the lack of response.” Carmichael asked Folio to explain how the Transportation department views its authority to obtain outside counsel.
Folio said he’s limited about what he can say because of the pending motion to dismiss by the paving companies.
“I’m not trying to be evasive,” Folio said.
Moments later, he said the issue would soon be a moot point.
“The Attorney General is going to be filing a significant filing this week,” Folio said.
He added, “I’m in a delicate situation. Please don’t construe my responses as evasion.”
Delegate Roger Hanshaw, a Republican from Clay County, pressed Folio, saying the public has a stake in knowing more specifics about the case. “We’re talking about a nine-digit lawsuit here,” Hanshaw said.
Folio again said he can’t fully answer because he has to abide by attorney-client privilege.
Hanshaw countered that he would like to see a copy of any agreement between the state and Bailey & Glasser: “My question is why you won’t disclose a copy of that agreement.”
“The question is moot,” Folio said again. “The Attorney General is representing the DOH.”
“All right,” Hanshaw said. “I quit.”
But the questioning continued. Lawmakers wanted to know if the state would be on the hook for any legal work already done by Bailey & Glasser.
“Are those dollars flushed away?” Gearheart asked.
Folio answered that he has been researching the price of asphalt and the state’s legal options for more than a year. Because he is a full-time state employee, he said there should be no additional cost.
After the hearing was over, Folio said the Department of Transportation reached an agreement with the Attorney General’s office for representation in early December. He noted that he’d said during a December meeting of the same committee that the Attorney General’s office had been involved with the case.
“I told them we’re working cooperatively and cordially with the AG’s office,” Folio said in a telephone interview, “but no one asked me ‘Is the AG representing you?’ until today.”
Gearhardt, after the meeting, said the committee would continue to ask the questions until it gets more answers, even after the Attorney General’s office officially gets involved.
“After that announcement I have every intention of asking the same questions because it goes to a broader notion than this one case and that is how in fact are we employing outside counsel, how are we retaining them, at what rates are we retaining them, have we gotten value from what we’re doing, has it caused us a potential difficulty with this particular lawsuit?
“The broader issue is how do we engage the Attorney General’s office, and is, in this case, Highways, doing it according to code? I am not certain that they are and am extremely disappointed in those items that they could have answered that were not proprietary were simply ignored with a blanket ‘We’ll give you some information after the Attorney General makes an announcement.”